Experts: Hate speech is still free speech

“As much as I wouldn’t tolerate hate speech in my own personal life, it is protected,” said Sean J. Young, legal director for the American Civil Liberties Union of Georgia.

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“There may be many kinds of speech that it seems everyone would agree is considered hate speech,” Young said. But deciding certain kinds of speech are no longer protected because you don’t like them can open the door to many types of speech being banned.

“If you allow the government to ban hate speech, you’ll give them the power to ban phrases like ‘black lives matter.’ I bet there are a few people who would consider that hate speech,” Young said. “I can think of many examples. You just cannot open that door for the government to determine what is hateful or not. That is a dangerous road to go down."

Ever since word broke that a neo-Nazi group, the Nationalist Socialist Movement, would be holding a rally in Newnan on April 21, many Cowetans have spoken out against the city granting a permit for the event, saying the permit should have been denied – or revoked after the fact. Some have said that NSM’s hate speech should not be protected as free speech.

The Newnan TImes-Herald asked two First Amendment experts to weigh in on the issues.

“The best response to bad speech is more speech,” Young said. “If you don’t agree with the things some people are saying then you should consider responding.

“But using the government… to punish people you disagree with or to silence other people’s views is unconstitutional.”

Local governments can put some minimal restrictions on speech, but most types of restriction on content are “almost always unconstitutional,” said Fred Smith, professor at the Emory University School of Law. “The safe thing for a government actor to do is not to engage in any kind of content regulation,” Smith said. “Even when people are going to say something most people in the community would find odious, our constitutional tradition is that people absolutely nonetheless have to be able to say those things."

Governments can use some reasonable “time, place, manner” restrictions, Smith said. Those include requiring permits in some cases for large groups, or saying that large protests need to be held in a specific location.

“”These are restrictions that don’t have anything to do with the content of the speech – and would apply to anybody regardless of what they’re saying,” Smith said.

Permits are more to give local governments some advance notice that a protest or rally will be happening and to give them an estimate of how many people will be there, according to Young.

Cities can require permits but cannot have rules in place that favor one side over the other – known as viewpoint regulation.

“It’s almost always unconstitutional when you let one side speak and you don’t let the other side of the same debate speak,” Smith said.

The city of Newnan is imposing time and place restrictions on both the NSM and any one who comes to protest against them on Saturday.

“For the protection of the demonstrators… and to preserve the safety of person and property, we are designating certain gathering spaces,” said Newnan Assistant City Manager Hasco Craver.

Attendees at the rally will be relegated to the Greenville Street Park, while protesters will be in a specified space on a portion of Greenville Street that will be closed to vehicles, according to Craver. The exact gathering place on Greenville Street will be determined based on how many people show up. It will be near the park, and the two groups will be in view of each other, according to Craver.

Anyone who is gathering in another area around the park “will be asked to join the crowd in Greenville Street Park or join the crowd on Greenville Street,” Craver said.

Craver said that numerous state, federal and local agencies have been part of the planning for Saturday’s rally.

The Newnan Police Department is coordinating security and crowd control, and plans to block off portions of Greenville Street to traffic, and to install multiple barricades, including water barricades, to separate the sides.

More than 50,000 people have signed an online petition asking the city of Newnan to refuse to allow the NSM rally.

The government can’t deny permits based on content of speech or based on controversy, Young said.

“Avoiding controversy is not a legitimate government interest,” Young said.

NSM was a main participating in the August rally in Charlottesville, Va., that turned violent and resulted in the death of a counter protester. While a group’s past actions “can certainly constitute evidence that additional security precautions should be taken,” it can’t typically be used to deny the group the right to it’s free speech, Young said.

“The first reaction cannot simply be to ban speech,” he said. “There are often many alternative ways of addressing legitimate security concerns that do not involve completely banning speech.”

Banning a group for what you think they will do before they do it is considered unconstitutional “prior restraint.”

Prior restraint issues come up a fair amount, Smith said. A particular case he mentioned involved neo-Nazi and Klu Klux Klan groups that wanted to march in a Jewish neighborhood in Skokie, Ill. The city refused, and the case went all the way to the U.S. Supreme Court.

The court ruled that Skokie couldn’t stop the protest “unless it could be demonstrated that there was an imminent danger,” Smith said. Imminent danger would require very specific threats of violence.

Some communities have also said that allowing the groups will cost too much in law enforcement spending.

“The courts have been very wary of that,” Smith said. “That can result in a ‘heckler’s veto.’ People can stop someone from being able to speak by trying to be rowdy back.”

If people become violent, officers can break up small pockets of violence, but shouldn’t use that to shut down the entire event, according to Young.

If people are arrested for peaceful protest, “that is something everyone should be concerned about,” Young said. If protesters are blocking traffic, trespassing on private property or uttering true physical threats, then there could be justification for arrest.

But “we have seen too many times in our nation’s history where law enforcement goes way overboard.”

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